Justice Innovation Lab & Loyola University Chicago
Justice Innovation Lab & Loyola University Chicago
Disparity and Prosecution in Charleston, SC
Disparityand Prosecution
in Charleston, SC
By Don Stemen, Rory Pulvino, JJ Naddeo, Branden DuPont, Lily Grier, Jess Sorensen, and Jared Fishman
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What the Report is About
The fair and just treatment of all communities at each stage of the criminal justice system is of significant importance to communities of color, practitioners, scholars and Solicitor Wilson, alike. Central to this discourse is a recognition of the discretionary power that prosecutors wield in shaping the outcomes of criminal cases. This includes, among other things, the decision to prosecute or dismiss charges, adjust the severity and number of charges filed, and dispose of criminal cases through dismissal, plea negotiations, or trial.
This report focuses on the outcomes of prosecutorial decision making for felony and misdemeanor offenses in the Ninth Circuit Solicitor’s Office in Charleston County, South Carolina. It assesses the existence and extent of racial and ethnic disparities across the following four decision points: (1) Complete case dismissals; (2) Plea negotiations; (3) Changes in charges from referral to disposition; and (4) Sentencing.
Solicitors’ Offices receive cases only after law enforcement makes an arrest on a criminal warrant. Their prosecutors’ decisions are “downstream” from the first decision in criminal case processing - deciding who is arrested. Where there are large racial disproportionalities in the raw number of people arrested, it follows that those disparate numbers flow through the prosecution.
While Black men account for just 12% of the population of Charleston, they account for 53% of those arrested for General Sessions offenses in 2019. Far more Black men are arrested in Charleston County than white men - in 2020, for example, there where 2,654 General Sessions cases involving Black men compared to 1,324 General Sessions cases involving white men. This disproportionality in arrests may not necessarily be explained by differences in criminal behavior. It can also be due to law enforcement practices and resource allocation that result in more people of color being stopped and arrested.
The very large divergence between population and who is arrested means that on a per capita basis, Black men are significantly more likely to be arrested. Yearly per capita arrest rates for Black men are roughly 60 people accused of a crime per 1,000 Black men; whereas for white men, the rate is much smaller - roughly 12 people accused of a crime per 1,000 white men. This results in Black men being 5 times more likely to be accused of a crime than white men.
60
Black Arrests per 1,000
12
White Arrests per 1,000
Such large differences in arrests per capita persist across all crime types, though they are especially large with respect to guns, person, and drug crimes. Black men are roughly 6 times more likely to be arrested for a drug crime, which when combined with the sheer volume of drug cases means that drug arrests significantly influence all downstream trends in the prosecution process. This difference ultimately affects case resolutions where Black men are more likely to have multiple arrests, and sentencing where Black men are more likely to be eligible for harsher punishment. In future reports, we will focus on these issues and show that the escalating nature of drug charging, paired with the long criminal histories generated by disproportionate drug arrests, account for a large portion of the racial disparity in incarceration lengths.
How to Interpret the Results
We encourage the reader to interpret the results while keeping in mind that disparate outcomes for minorities may occur for many different reasons. Some of these reasons, such as defense attorney role and judicial discretion, are beyond the immediate control of prosecutors. At the same time, Solicitor Wilson and the research partners are keenly aware that prosecutors can and should play a vital role in uncovering and addressing racial and ethnic disparities in the criminal justice system, and this report stems from that recognition. This report then is the first step for an office in using data to examine racial disparity in criminal case processing and can help guide an office toward deeper analysis related to one of the covered decision points.
We highlight certain crime types below where there are statistically significant differences in outcomes between Black and white men. Statistically significant differences means that the difference between outcomes for Black and white men are unlikely to be explained by chance or differences in cases involving Black and white men; rather these differences are likely explained by the individual’s race. We also highlight crime types where there is a noticeable difference in outcomes, even where there is not a statistically significant difference in how Black and white men are being treated; we include these because these reveal differences in how Black and white men experience the criminal justice system.
The intent of this report is to prompt discussion and raise questions, rather than provide definitive answers. We also want to stress that the findings presented throughout this report cannot be used to support or refute possible racial and ethnic biases. Our methodology simply does not permit that. Rather than serving as an end point, we view this report as a starting point from which to engage in meaningful discussions concerning policies and procedures that can ameliorate racial and ethnic disparities in case outcomes. Furthermore, given that prosecutorial decision making does not operate in a vacuum, certain findings direct attention to ways the Solicitor’s Office, the defense bar, law enforcement agencies, and the judiciary can galvanize future reform efforts. Even more importantly, continued efforts to engage with impacted communities will be critical for increasing public trust in and cooperation with the criminal justice system.
An earlier version of this report included a crime type entitled “Traffic”. After further review of the charges which comprised this crime type, we concluded that several of the charges included were regulatory offenses while others were assaultive or obstructive. Because the title of the section and the charges included were dissimilar, and not appropriate for grouping and comparison, we removed this section of the report.
Sentencing: Rate
The results account for differences in individuals’ characteristics, arrest agency, number and type of charges, and the prosecutor for the case.
65.2 %
All Defendants
65.5%
Black Defendants
64.2%
White Defendants
Sentencing
Cases resulting in a plea or trial conviction may result in either a non-custodial sentence or a custodial sentence.
Non-custodial sentences include any sentence in which probation, fines, court costs, community service, or other punishments are assigned, but the individual is not incarcerated. We defined custodial sentences to include any jail or prison sentence imposed - including sentences for time served over 5 days. Most custodial sentences are for a post-conviction detention.
Overall, 65.2% of people found guilty of a crime in Charleston County receive a custodial sentence following conviction.
After accounting for differences in the individual and the number and type of charges in the case, Black and white men are nearly equally likely to receive a custodial sentence, 65.5% and 64.2% respectively, receive a custodial sentence.
However, given the larger number of Black men arrested, charged, and prosecuted in the county, over twice as many Black men 3,844 receive a custodial sentence compared to white men 1,845.
While Black men make up a majority (63.8%) of cases in our data, they make up an even larger share of those given a custodial sentence: 67.6%.
This suggests that Black men are being prosecuted for crimes that are more likely to result in a custodial sentence such as second and third offense drug charges.
While there are some differences across crime types in the likelihood of a custodial sentence for Black and white men, none are very large or statistically significant. Yet, despite the similar probabilities in receiving a custodial sentence for specific crime types, the disproportionality in the number of people arrested, charged, and prosecuted for those crime types creates large disproportionalities in the number of people receiving a custodial sentence.
For example, 59.5% of Black men and 58.5% of white men convicted of a drug crime receive a custodial sentence.
However, this translates into 1,240 Black men compared to 490 white men sentenced to jail or prison; in other words, nearly three times as many Black men convicted of a drug crime in Charleston County receive a custodial sentence.
Although we find no meaningful differences in the likelihood of a custodial sentence, we do find large differences in the lengths of custodial sentences imposed.
On average, Black men receive sentences that are about twice as long as those of white men. This difference is accounted for, though, by differences in the individuals’ criminal history and the number and type of charges that the individual is prosecuted for.
In future work we examine what case and individual characteristics drive the massive raw disparity in incarceration length.
Sentencing: Rate
The results account for differences in individuals’ characteristics, arrest agency, number and type of charges, and the prosecutor for the case.
65.2 %
All Defendants
65.5%
Black Defendants
64.2%
White Defendants
Conclusion
Once referred to the Ninth Circuit Solicitor’s Office, there are very few differences in case outcomes for Black and white men in Charleston County. After accounting for things like offense severity, number of charges, or an individual’s criminal history, the likelihood of case dismissal, charge reduction, or custodial sentences for different racial groups is very similar. Overall, Black men are slightly more likely to have their cases dismissed and to have their charges reduced at disposition; in contrast, white men are slightly more likely to have additional charges dismissed as part of a plea and to receive a non-custodial sentence after conviction. However, these differences are minimal and largely statistically insignificant.
Differences in outcomes become slightly more pronounced when looking at specific offense types and specific decision points. For example, the likelihood of receiving a charge reduction from arrest to indictment is nearly identical for Black and white men, but when limited to traffic cases Black men are less likely than white men to receive a charge reduction; however, for property crimes Black men are more likely than white men to receive a charge reduction. Similarly, although Black and white men are nearly equally likely to have additional charges dismissed as part of a plea, Black men are less likely than white men to receive such offers in cases involving person and property crimes, but are more likely than white men to receive such offers in cases involving gun crimes.
While we find little racial disparity in outcomes once cases are referred to the Ninth Circuit Solicitor’s Office, we continue to see significant racial disproportionality in the number of people receiving different outcomes. This is because our main set of results compare hypothetical “similarly situated” individuals. In reality, Black males are younger, come from poorer neighborhoods, are more likely to live in state, have longer criminal histories, have more charges per case, and are charged with crimes that carry longer potential sentences - as demonstrated in the appendix.
While it is important to account for these characteristics in the pursuit of identifying additional racial bias within the system, one must acknowledge that racial bias may also help generate some of these differences. For example, the increased likelihood of being arrested starts a cycle for Black men that leads to longer criminal histories, closer scrutiny by the police, and harsher punishments for future arrests resulting in Black men being sentenced to over 70% of all sentenced time in Charleston. We also find racial disparity in the time in which it takes the Ninth Circuit Solicitor’s Office to handle dismissals. As discussed in the appendix, Black individuals wait approximately 6 weeks longer than white individuals to have their cases dismissed. These additional 6 weeks of waiting for a dismissal can result in undue stress and costs, as well as disruptions to personal and professional relationships.
Future Work
Justice Innovation Lab is continuing to partner with the Ninth Circuit Solicitor’s Office on a number of research projects including:
Determining what drives differences between Black and white men in how long it takes to resolve cases.
Analyzing what charges are the greatest contributors to the average difference in incarceration length between Black and white men.
Identifying office practices that might contribute to delays in resolving cases.
Examining frequently dismissed charges to determine if there are common elements to such cases.
